14‐1546‐cv Dean v. University at Buffalo School of Medicine and Biomedical Sciences, et al.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2014 6 7 (Argued: February 19, 2015 Decided: October 6, 2015) 8 9 Docket No. 14‐1546‐cv 10 11 ____________________ 12 13 MAXIAM DEAN, 14 15 Plaintiff‐Appellant, 16 17 v. 18 19 UNIVERSITY AT BUFFALO SCHOOL OF MEDICINE AND BIOMEDICAL 20 SCIENCES, STATE UNIVERSITY OF NEW YORK, MICHAEL E. CAIN, M.D., 21 Individually and in his official capacity as Dean of the University at Buffalo 22 School of Medicine and Biomedical Sciences, NANCY NIELSEN, M.D., Ph.D., 23 Individually and in her official capacity as Senior Associate Dean of the 24 University at Buffalo School of Medicine and Biomedical Sciences, 25 26 Defendants‐Appellees. 27 28 ____________________ 29 30 Before: WINTER, POOLER, SACK, Circuit Judges.

1 Appeal from the United States District Court for the Western District of

2 New York (William M. Skretny, J.) granting summary judgment to defendants

3 and dismissing plaintiff Maxiam Dean’s claims under, inter alia, Title II of the

4 Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973,

5 and the Due Process Clause. After failing to sit for and pass his third attempt at

6 Step 1 of the United States Medical Licensing Examination by the deadline set by

7 the University at Buffalo School of Medicine and Biomedical Sciences, Dean was

8 dismissed from the M.D. program. Because defendants did not grant Dean the

9 accommodation he requested for his mental‐health condition and failed to

10 provide a “plainly reasonable” alternative or attempt to show that Dean’s

11 proposed modification was unreasonable, the district court erred in granting

12 summary judgment on the ADA and Rehabilitation Act claims. However, having

13 received notice of potential termination from the program and a “careful and

14 deliberate” decision Dean was provided the procedural process due for an

15 academic dismissal.

16 Affirmed in part, vacated in part, and remanded.

17 ____________________

18 PARKER R. MACKAY (David J. Seeger, Buffalo, NY, on the 19 brief), Kenmore, NY, for Plaintiff‐Appellant.

2

1 2 LAURA ETLINGER, Assistant Solicitor General (Barbara 3 D. Underwood, Solicitor General, Andrea Oser, Deputy 4 Solicitor General, on the brief), for Eric T. Schneiderman, 5 Attorney General of the State of New York, Albany, NY 6 for Defendants‐Appellees. 7 8 POOLER, Circuit Judge:

9 Plaintiff‐Appellant Maxiam Dean appeals from the judgment of the United

10 States District Court for the Western District of New York (William M. Skretny,

11 J.) granting summary judgment to the University at Buffalo School of Medicine

12 and Biomedical Sciences (“UBMED”), State University of New York (“SUNY”),

13 Michael E. Cain, and Nancy Nielsen (collectively “Defendants”) and dismissing

14 his complaint. Dean brought suit under, inter alia, Title II of the Americans with

15 Disabilities Act (“ADA”),

; Section 504 of the Rehabilitation Act

16 of 1973,

; and

for alleged violations of the Due

17 Process Clause of the United States Constitution. After failing to sit for and pass

18 his third attempt at Step 1 of the United States Medical Licensing Examination

19 (“USMLE”) by the deadline set by UBMED, Dean was dismissed from the M.D.

20 program. Because a trier of fact could find that defendants did not grant the

21 accommodation Dean requested for his mental‐health condition and failed to

22 provide a “plainly reasonable” alternative or attempt to show that Dean’s

3

1 proposed modification was unreasonable, the district court erred in granting

2 summary judgment on the ADA and Rehabilitation Act claims. However, having

3 received notice of potential termination from the program and a“careful and

4 deliberate” decision Dean was, as a matter of law, provided the procedural

5 process due for an academic dismissal.

6 Accordingly, we affirm the grant of summary judgment to Defendants as

7 to Dean’s due process claim, vacate the remainder of the judgment, and remand

8 to the district court.

9 BACKGROUND

10 Maxiam Dean enrolled in the four‐year M.D. course at UBMED in August

11 2004. The program is divided in two phases, each comprising two years of study.

12 To progress to the latter stage a student must pass all first‐phase modules and

13 electives, a second‐year clinical competency examination, and Step 1 of the

14 USMLE administered by the National Board of Medical Examiners (“NBME”).

15 Dean completed the required coursework and second year clinical competency

16 exam by the spring of 2006.

17 The Academic Status Policies (“ASP”) issued by UBMED permits a student

18 three opportunities to pass the Step 1 exam, with all attempts to be completed in

4

1 one academic year exclusive of official (non‐study) leaves of absence. A student

2 who thrice fails the Step 1 exam is to be administratively dismissed, but may

3 appeal to the dean of UBMED. Under this policy Dean was required to complete

4 Step 1 of the USMLE by May 31, 2007.

5 UBMED allowed Dean study leave before his first and second attempts at

6 the Step 1 exam. In June 2006, Dean took a six‐week leave to prepare for the

7 examination but failed it in mid‐August 2006. Dean thereafter received three

8 additional six‐week study leaves. Although the ASP provides only eight weeks

9 for a student to prepare for a second sitting of the Step 1 exam, UBMED granted

10 Dean’s requests. Prior to his second attempt, senior associate dean Dr. Nancy

11 Nielsen wrote to Dean on January 4, 2007, informing him that by the terms of his

12 leave of absence he would be “automatically dismissed from medical school” if

13 he failed to sit for Step 1 by February 17, 2007, and that no extensions for further

14 study would be granted. App’x at 177. Dean replied by email to Dr. Nielsen

15 explaining that he had enrolled in the PASS Program, a private examination

16 preparation course consisting of lectures and tutoring, to prepare for the USMLE,

17 which Dean understood he could sit for as late as May 31, 2007. Dean noted that

18 prior to attending the program he was “ridden with depression, stress, and

5

1 anxiety,” App’x at 231, asked for an “extra month in the Pass Program to

2 succeed” but did not request medical leave. App’x at 232. Dean ultimately retook

3 Step 1 on February 16, 2007, and again failed.

4 Dr. Nielsen informed Dean by letter that he would go on study leave at the

5 end of his current medical clerkship to prepare for a final try (no later than May

6 31, 2007) at the Step 1 exam. The ASP does not prescribe a particular study

7 period for a third attempt but states that the student will be removed from the

8 clerkship roster and “allowed to prepare for, and sit for, the examination one

9 final time. [The student] must sit for the examination by the date established by

10 the Office of Medical Education for the next incoming third year class.” App’x at

11 142. Former faculty member and chair of surgery Dr. Eddie Hoover attested that

12 “it was longstanding policy that students taking the Step 1 exam, whether on

13 their first, second or third attempt, were afforded a 6 to 8 week period to

14 prepare.” App’x at 339. In particular, he emphasized that “each time a medical

15 student took the Step 1 exam, he or she was allowed and expected to study

16 exclusively for the exam for a 6 to 8 week period leading up to the examination

17 itself.” App’x at 339. In his deposition, Dean similarly testified that all students

18 were afforded a six‐ to eight‐week study leave prior to each attempt.

6

1 Sometime after failing the Step 1 exam for a second time Dean became

2 disabled. In April 2007, he began to experience increased symptoms of

3 depression, and on May 4, 2007, Dr. Andrea Greenwood, a psychologist,

4 conducted a crisis evaluation session with Dean through the university’s

5 counseling services. Dean reported disrupted sleep and appetite, fatigue, and

6 difficulty concentrating. Dr. Greenwood advised Dean to schedule a

7 comprehensive evaluation. That same day Dean met with Dr. Dwight Lewis, an

8 internist, who proposed that Dean begin pharmacological treatment and

9 provided Dean an “excuse slip” recommending a three‐month leave of absence

10 due to situational depression.

11 Dean presented the slip to UBMED and received responses from Dr.

12 Nielsen, by letter and email, informing him that Dr. Lewis’s note provided

13 insufficient information to support an extended leave. Dr. Nielsen advised Dean

14 that the dean of UBMED, Dr. Michael Cain, would not grant any additional

15 extensions and that Dean was to sit for Step 1 by May 31, 2007. After learning

16 that Dean independently inquired of UBMED’s leave of absence committee, Dr.

17 Nielsen notified Dean that Dr. Cain had already reviewed his physician’s note

18 and declined to grant an extension. In a separate letter Dr. Nielsen stated that

7

1 Dean would “be immediately administratively dismissed from school” upon

2 receipt of a failing score on the Step 1 exam. App’x at 175.

3 Dr. Greenwood re‐evaluated Dean on May 17, 2007. In a letter to Dr.

4 Nielsen and the leave of absence committee she outlined the symptoms of Dean’s

5 depression, noting effects on his ability to concentrate and maintain focus and

6 opining that Dean would likely benefit from treatment. The following day Dr.

7 Lewis prescribed Dean Lexapro, an anti‐depressant medication. As a follow up

8 to the earlier excuse slip, Dr. Lewis also wrote to the committee recommending a

9 medical leave of absence to permit Dean to return to proper functioning such

10 that he would be “capable of the academic performance required to advance in

11 his medical training.” App’x at 300. Neither Dr. Greenwood nor Dr. Lewis

12 suggested a particular period of leave.

13 Dean wrote separately to the leave‐of‐absence committee on May 21, 2007,

14 describing his symptoms and requesting a three‐month leave to continue the

15 medication regimen, visit the university psychologist, and temporarily return

16 home for family support. He indicated that “[a]t the end of the leave [he would]

17 sit for the retake of step 1 and return back to clinical clerkship.” App’x at 296.

8

1 After meeting with Dean, the leave‐of‐absence committee endorsed a leave

2 of absence until June 30, 2007, a date approximately six weeks after Dean began

3 taking Lexapro. The committee’s May 22, 2007 letter to Dr. Nielsen noted that

4 leave should be granted to permit adequate time for the treatment to become

5 effective but that Dean “should not be granted a leave of absence to gain more

6 ‘study time’” and counseled that no further leave be granted. App’x at 302.

7 Accepting the committee’s recommendation, Dr. Cain informed Dean by letter

8 dated May 25, 2007, of the extended deadline but stated that “[n]o further delays

9 whatsoever w[ould] be granted” and reminded Dean that he was required to

10 pass Step 1 within the three attempts permitted by the ASP before returning to

11 the M.D. program. App’x at 306.

12 On May 31, 2007, Dean attended a follow‐up appointment with university

13 psychiatrist Dr. Calvert Warren, who furnished Dean with a letter indicating that

14 despite mild improvement since beginning treatment on May 18, Dean exhibited

15 symptoms of major depression. Dr. Warren supported a leave of absence to

16 permit Dean’s treatment interventions to progress and noted a six‐ to eight‐ week

17 timeframe for anti‐depressant medications to achieve effectiveness. Dean

18 forwarded Dr. Warren’s letter to Dr. Cain and enclosed his own letter dated June

9

1 1, 2007, again requesting a three‐month leave of absence: “Please reconsider

2 giving me more than one month so that the medication will reach steady state

3 and be therapeutic, so I can focus on preparing for the retake of Step 1.” App’x at

4 311. By letter dated June 7, 2007, Dr. Cain allowed Dean until July 28, 2007, to sit

5 for the Step 1 exam but stated that “no further extensions regardless of reason”

6 would be granted. App’x at 313. The July 28 deadline fell approximately ten

7 weeks after Dean began drug therapy for his depression.

8 While re‐enrolled in the PASS Program, Dean experienced “a noticeable

9 improvement in his functioning” in late June 2007. App’x at 20. By mid‐July,

10 approximately eight weeks after commencing treatment, Dean “regained normal

11 functioning” and was able to intensively study. App’x at 20. Dean reported

12 being “virtually free of depression” on July 21. App’x at 243. Two days later, Dr.

13 Francis Ihejarika, the founder of the PASS Program, left a voicemail for Dr. Cain,

14 expressing confidence that Dean would be successful on the Step 1 exam with an

15 additional month of preparation time. Dr. Nielsen informed Dean by email that

16 due to privacy regulations the school would not return Dr. Ihejirika’s call. Dean

17 ultimately did not sit for the Step 1 exam by July 28, 2007, and did not request

18 further extension of that deadline.

10

1 By letter dated August 15, 2007, UBMED notified Dean that he had been

2 administratively dismissed from the M.D. program for failure to timely sit for the

3 Step 1 exam. The letter informed Dean that he could appeal and that Dr. Nielsen

4 would review the process, purportedly outlined in the ASP, with him should he

5 so desire. Dean did not appeal. However, in late August he attempted to register

6 for the Step 1 exam. NBME rejected the registration as Dean was no longer

7 enrolled in a medical school.

8 Dean subsequently filed a complaint with the U.S. Department of

9 Education’s Office of Civil Rights (“OCR”). In May 2008, OCR concluded that

10 Defendants “granted [Dean] a leave of absence consistent with the

11 recommendations made by [Dean’s] medical team,” and found “insufficient

12 evidence to support [Dean’s] allegation that the School discriminated against

13 him, on the basis of his disability, by refusing to grant him an additional month’s

14 leave of absence.” App’x at 112. With this complaint pending Dean wrote to Dr.

15 Cain requesting a meeting to discuss his dismissal. Dr. Cain declined to meet

16 during the OCR investigation but invited Dean to submit additional information

17 at the conclusion of those proceedings. In July 2008, Dean formally sought

18 reinstatement arguing that his failure to sit for the Step 1 exam was not an act of

11

1 defiance, and submitted a letter from Dr. Hoover noting that it was “impractical”

2 for Dean to study for the exam “with his degree of depression.” App’x at 109.

3 UBMED rejected Dean’s request for reinstatement. Because Dean was dismissed

4 from UBMED he is ineligible to transfer to another American medical school.1

5 Dean commenced this action in the district court bringing claims against

6 Defendants under: Title II of the ADA; the Rehabilitation Act;

;

7 and

. Seeking money damages and reinstatement, Dean alleged

8 that his dismissal from UBMED resulted from discrimination on the basis of

9 disability and race. Upon completion of discovery, Defendants moved for

10 summary judgment. The district court granted the motion and dismissed the case

11 in its entirety, finding, inter alia, “no plausible inference” of discrimination

12 against Dean as a result of his disability, Dean v. Univ. at Buffalo Sch. of Med. &

13 Biomedical Scis., No. 10‐CV‐209S (Sr),

, at *7 (W.D.N.Y. Mar. 31,

14 2014), or that the medical leave afforded “insufficient accommodation or

15 otherwise disadvantaged [Dean] as compared to able‐bodied students required

16 to complete all attempts at the Step 1 exam within one academic year,”

at *7

1 Though of no consequence to the outcome of this appeal, Dean attests that in 2010, with sponsorship from a Caribbean medical school, he registered for, sat for, and passed Step 1 of the USMLE.

12

1 n.5. On the due process claim, the district court concluded that because academic

2 dismissals require only notice and a “careful and deliberate” decision,

3 Defendants provided Dean the process due under the circumstances.

.

4 On appeal, Dean challenges the grant of summary judgment to Defendants

5 on the ADA, Rehabilitation Act, and due process claims.2

6 DISCUSSION

7 I. Standard of Review

8 We review an order granting summary judgment de novo, drawing all

9 permissible factual inferences in favor of the non‐moving party. Cox v. Warwick

10 Valley Cent. Sch. Dist.,

(2d Cir. 2011). Summary judgment is

11 appropriate only where “there is no genuine dispute as to any material fact and

12 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

13 genuine dispute of material fact exists only “where the evidence is such that a

14 reasonable jury could decide in the non‐movant’s favor.” Delaney v. Bank of

15 America Corp.,

(2d Cir. 2014) (quoting Beyer v. Cty. of Nassau, 524

(2d Cir. 2008)). “[R]eliance upon conclusory statements or mere

17 allegations is not sufficient to defeat a summary judgment motion.” Davis v. New

Dean conceded before the district court that neither the ADA nor the 2

Rehabilitation Act permit claims against state officials in their individual capacities. Dean,

, at *5. 13

F.3d 93, 100 (2d Cir. 2002). However, “[i]f, as to the issue on which

2 summary judgment is sought, there is any evidence in the record from which a

3 reasonable inference could be drawn in favor of the opposing party, summary

4 judgment is improper.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc.,

5

, 82–83 (2d Cir. 2004) (quoting Gummo v. Village of Depew,

,

6 107 (2d Cir. 1996)).

7 II. ADA and Rehabilitation Act Claims

8 Congress enacted the ADA “to provide a clear and comprehensive

9 national mandate for the elimination of discrimination against individuals with

10 disabilities.”

(b)(1). To that end, Title II of the ADA provides

11 that “no qualified individual with a disability shall, by reason of such disability,

12 be excluded from participation in or be denied the benefits of the services,

13 programs, or activities of a public entity, or be subjected to discrimination by any

14 such entity.”

§ 12132. A qualified individual with a disability is defined as “an

15 individual with a disability who, with or without reasonable modifications to

16 rules, policies, or practices . . . meets the essential eligibility requirements for . . .

17 participation in programs or activities provided by a public entity.” Id. §

14

1 12131(2). A public entity includes a state or local government body or any

2 instrumentality thereof. Id. § 12131(1).

3 Section 504 of the Rehabilitation Act provides, in pertinent part, that “[n]o

4 otherwise qualified individual with a disability . . . shall, solely by reason of her

5 or his disability, be excluded from the participation in, be denied the benefits of,

6 or be subjected to discrimination under any program or activity.”

794(a). By its terms, the Rehabilitation Act, which was enacted prior to the ADA,

8 applies only to programs receiving federal financial support. Id.; see Powell v.

9 Nat’l Bd. of Med. Exam’rs,

(2d Cir.), opinion corrected,

(2d Cir. 2004).

11 Both acts “prohibit discrimination against qualified disabled individuals

12 by requiring that they receive ‘reasonable accommodations’ that permit them to

13 have access to and take a meaningful part in . . . public accommodations.”

14 The ADA defines “discriminate” as, inter alia, “not making reasonable

15 accommodations to the known physical or mental limitations of an otherwise

16 qualified individual with a disability . . . unless [the provider of the service] can

17 demonstrate that the accommodation would impose an undue hardship on” its

18 operations.

(b)(5)(A). Under the Rehabilitation Act “an

15

1 otherwise qualified handicapped individual must be provided with meaningful

2 access to the benefit that the grantee offers . . . . [T]o assure meaningful access,

3 reasonable accommodations in the grantee’s program or benefit may have to be

4 made.” Alexander v. Choate,

(1985); see Henrietta D. v. Bloomberg,

5

(2d Cir. 2003).

6 In the education context, the ADA and the Rehabilitation Act require a

7 covered institution to offer reasonable accommodations for a student’s known

8 disability unless the accommodation would impose an “undue hardship” on the

9 operation of its program, Powell,

(citing

); see

10 Rothschild v. Grottenthaler,

(2d Cir. 1990) (“Accommodations to

11 permit access to handicapped persons should not impose ‘undue financial and

12 administrative burdens.’”) (quoting Se. Cmty. Coll. v. Davis,

, 412

13 (1979)), or “‘fundamentally alter the nature of the service, program, or activity,’”

14 Powell,

(quoting

(b)(7)); see Alexander,

300 (“[W]hile a grantee need not be required to make ‘fundamental’ or

16 ‘substantial’ modifications to accommodate the handicapped, it may be required

17 to make ‘reasonable’ ones.”). Thus, while a covered entity “must make

18 ‘reasonable accommodations,’ it does not have to provide a disabled individual

16

1 with every accommodation he requests or the accommodation of his choice.”

2 McElwee v. Cty. of Orange,

(2d Cir. 2012); see Fink v. N.Y.C. Depʹt

3 of Pers.,

(2d Cir. 1995) (same)..

4 As the standards for actions under these provisions of the ADA and the

5 Rehabilitation Act are generally equivalent, we analyze such claims together.

6 Harris v. Mills,

, 73‐74 (2d Cir. 2009). To establish a prima facie

7 violation under these acts, a plaintiff must demonstrate “(1) that she is a

8 ‘qualified individual’ with a disability; (2) that the defendants are subject to one

9 of the Acts; and (3) that she was ‘denied the opportunity to participate in or

10 benefit from defendants’ services, programs, or activities, or was otherwise

11 discriminated against by defendants, by reason of her disability.’” Powell, 364

12 F.3d at 85 (quoting Henrietta D.,

) (alterations omitted). Before the

13 district court Defendants conceded that they were entities covered by the

14 provisions of the acts, Dean,

, at *6, and given their failure to

15 address whether Dean was a “qualified individual with a disability,” the district

16 court assumed that Defendants conceded that issue for purposes of the summary

17 judgment motion.

at *6 n.3. Thus, only the third prong of the prima facie

17

1 analysis was in issue—whether Defendants engaged in discrimination by failing

2 to make reasonable accommodations.

3 Surveying the record, the district court discerned “no plausible inference

4 that Defendants discriminated against Plaintiff or deprived him of an

5 opportunity or benefit because of a disability such that a reasonable jury could

6 find in his favor.”

. In support of this conclusion, the court noted that the

7 period of medical leave granted by Defendants allowed Dean to return to normal

8 functioning approximately two weeks prior to the Step 1 exam deadline and

9 incidentally extended the time in which he could sit for the exam beyond the

10 period ordinarily permitted. Moreover, the district court concluded that Dean

11 had not shown that the accommodation he received was unreasonable, as he did

12 “not offer[] any evidence indicating the leave he was granted failed to level the

13 playing field or treat him in an even‐handed manner with regard to the Step 1

14 exam.”

(footnote omitted). That the period of leave granted complied with the

15 general recommendations of Dean’s doctors buttressed the district court’s

16 conclusion that the accommodation offered was sufficient. Finally, emphasizing

17 that Dean had already devoted a year to study prior to his medical leave, the

18 district court indicated that Dean’s “opinion” provided the only support for his

18

1 contention that a reasonable accommodation would have included an additional

2 period for study after the symptoms of his depression abated.

, 7 n.5.The

3 district court therefore granted Defendants’ summary judgment motion on

4 Dean’s ADA and Rehabilitation Act claims.

5 On appeal, Dean contends that Defendants failed to provide a reasonable

6 accommodation because he should have been afforded an interval of leave

7 sufficient to allow the prescribed medication to take effect and for Dean to

8 thereafter prepare for a final attempt at the Step 1 exam. Defendants respond that

9 Dean sought medical leave solely for the purpose of undergoing treatment for

10 depression and did not specifically request additional study time prior to the

11 Step 1 retake. Thus, in ultimately supplying Dean a more generous leave period

12 than purportedly requested by Dean and recommended by his physicians,

13 Defendants assert they provided a reasonable accommodation. It is axiomatic

14 that a claim for failure to accommodate does not lie where the accommodation

15 received is the accommodation the plaintiff requested. See Tsombanidis v. W.

16 Haven Fire Dep’t,

(2d Cir. 2003).

17 Dean was not afforded the accommodation he sought. In his June 1, 2007

18 letter to Dr. Cain requesting reconsideration of the leave of absence set to expire

19

1 at the end of that month, Dean asked for a three‐month leave to allow “the

2 medication [to] reach steady state and be therapeutic, so [he] c[ould] focus on

3 preparing for the retake of Step 1.” App’x at 311. While Dean did not explicitly

4 disaggregate the purposes of the requested leave period, he explained that Dr.

5 Warren had counseled that Dean “would need at least 6 to 8 weeks before [he]

6 could see some improvement from the medication.” App’x at 311. As Dean

7 requested a period some five to seven weeks longer than necessary for the

8 medication to become effective, a trier of fact could find that the additional time

9 Dean sought was clearly to prepare for the Step 1 retake. The leave of absence

10 committee had little difficulty discerning the dual purpose of Dean’s request for

11 leave. In its May 22, 2007 letter to Dr. Nielsen, the committee recommended that

12 Dean’s requested three‐month leave period be limited to approximately six

13 weeks of medical leave, as the “committee fel[t] that [Dean] should not be

14 granted a leave of absence to gain more ‘study time.’” App’x at 169. On this

15 record, a reasonable juror could find that the leave Dean requested included a

16 period for exam preparation and that Defendants understood the scope of his

17 request.3

Because Dean’s requested three‐month leave included time for exam 3

preparation, the fact that his medical documentation did not endorse that leave 20

1 While Defendants did not provide the accommodation Dean sought, it is

2 undisputed that they afforded him an alternative one. Dean was permitted a

3 cumulative leave period spanning approximately ten weeks—from May 21, 2007,

4 when he formally requested leave, until July 28, 2007, when he was required to

5 sit for the Step 1 exam. The record establishes that by mid‐July Dean’s symptoms

6 had lessened to the extent that he was able to engage in productive study. Thus,

7 by the July 28 deadline, Dean enjoyed at least some depression‐free study time.

8 We must therefore decide, on the summary judgment record before us, whether

9 this modification to the exam deadline was a reasonable accommodation.

10 Where a defendant’s educational institution has implemented or offered

11 an accommodation, the institution will be entitled to summary judgment only if

12 the undisputed record reveals that the plaintiff was accorded a “‘plainly

13 reasonable’” accommodation. Noll v. Int’l Bus. Machs. Corp.,

(2d

14 Cir. 2015) (quoting Wernick v. Fed. Reserve Bank of N.Y.,

(2d Cir.

15 1996)). The hallmark of a reasonable accommodation is effectiveness. See U.S.

16 Airways, Inc. v. Barnett,

(2002) (“It is the word ‘accommodation,’

17 not the word ‘reasonable,’ that conveys the need for effectiveness.”). The

period is neither material to whether the proposed accommodation was received nor dispositive of the reasonableness of that request. 21

1 accommodation need not be “perfect” or the one “most strongly preferred” by

2 the student‐plaintiff, but it still must be “effective,” Noll,

. Given the

3 “fact‐specific” nature of the question of whether a measure to accommodate a

4 student’s disability is a reasonable accommodation, this determination “must be

5 made on a case‐by‐case basis.” Wernick,

.

6 Defendants posit that the accommodation offered Dean was reasonable

7 since he had studied during two extended periods of leave prior to any reported

8 mental health condition, such that additional study time would not have been

9 necessary. In alluding to the year Dean spent preparing for the Step 1 exam, the

10 district court appeared to embrace this theory.

11 We disagree. As an initial matter, we harbor serious doubt that earlier

12 periods of study suffice to prepare a student for a later examination, particularly

13 when the student twice failed that very exam. Further, contrary to the district

14 court’s conclusion, Dean offered evidence to establish that he was not treated in

15 an evenhanded manner with respect to similarly situated students. Cf. Doe v.

16 Pfrommer,

(2d Cir. 1998) (“[T]he central purpose of the ADA and §

17 504 of the Rehabilitation Act is to assure that disabled individuals receive

18 ‘evenhanded treatment’ in relation to the able‐bodied.”). According to Dean’s

22

1 evidence, UBMED granted a set period of study leave to students prior to each

2 sitting of the examination. Dr. Hoover attested to a “longstanding policy” of

3 affording students six to eight weeks exclusively for exam preparation prior to

4 each attempt at Step 1 of the USMLE. App’x at 339. Dean similarly testified at his

5 deposition. While it is unclear how many days or weeks Dean spent effectively

6 studying after beginning pharmacological treatment, by any measure Dean’s

7 period of preparation time in late July 2007 did not span the six to eight weeks

8 allegedly afforded, as a matter of school policy, to medical students who had also

9 failed two prior attempts at the Step 1 exam. Given this policy, a juror could

10 reasonably infer that the abbreviated study period encompassed within Dean’s

11 leave would not have been effective. See Barnett,

(“An ineffective

12 ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s

13 limitations.”). We therefore cannot conclude that Defendants afforded Dean a

14 plainly reasonable accommodation.

15 As we may affirm a grant of summary judgment on any basis that finds

16 “sufficient support in the record, including grounds not relied on by the district

17 court,” see Lotes Co., Ltd. v. Hon Hai Precision Indus. Co.,

(2d Cir.

18 2014) (quoting Bruh v. Bessemer Venture Partners III L.P.,

(2d Cir.

23

1 2006)), we further consider, under the applicable burden‐shifting framework

2 elaborated below, whether Dean’s proposed accommodation would have been

3 reasonable, see Noll,

.

4 We have not previously addressed the allocation of the burdens of

5 production and persuasion with respect to establishing the third prong of a

6 prima facie violation of the ADA or Rehabilitation Act—here the purported

7 denial of a reasonable accommodation—in the education context. However, in

8 employment‐related claims based on a failure to accommodate, the plaintiff

9 bears the initial burdens of both production and persuasion as to the existence of

10 an accommodation that would allow the plaintiff to perform the essential

11 functions of the position in question, McBride v. BIC Consumer Prods. Mfg. Co., 583

(2d Cir. 2009), as well as a “light burden of production” as to the facial

13 reasonableness of the accommodation,

97 n.3; see Borkowski v. Valley Cent. Sch.

14 Dist.,

(2d Cir. 1995) (plaintiff satisfies “burden of production” by

15 showing “plausible accommodation”). The burden of persuasion then shifts to

16 the defendant to rebut the reasonableness of the proposed accommodation.

17 McBride, 583 F.3d at 97 n.3. This burden of non‐persuasion is in essence

18 equivalent to the “burden of showing, as an affirmative defense, that the

24

1 proposed accommodation would cause [the employer] to suffer an undue

2 hardship.” Borkowski,

; see Barnett,

(finding summary

3 judgment in favor of defendant appropriately granted where a plaintiff fails to

4 present evidence from which a jury may infer that an accommodation “seems

5 reasonable on its face, i.e., ordinarily or in the run of cases,” or where defendant

6 “demonstrates undue hardship in the particular circumstances” of the case).

7 Similarly, in the education context, a plaintiff alleging a failure to

8 accommodate a disability bears the burdens of both production and persuasion

9 as to the existence of some accommodation that would allow the plaintiff to meet

10 the essential requirements of the service, program, or activity at issue. Once the

11 plaintiff has met the light burden of producing evidence as to the facial

12 reasonableness or plausibility of the accommodation, the burden falls to the

13 defendant educational‐institution to persuade the fact‐finder that the proposed

14 accommodation is unreasonable. That burden may be met by establishing that

15 the requested accommodation would (a) impose undue hardship on the

16 operation of the defendant’s service, program, or activity, or (b) require a

17 fundamental or substantial modification to the nature of its academic program or

18 standards. See, e.g., Powell,

(allowing a student in medical school to

25

1 continue in program without passing Step 1 “would have changed the nature

2 and substance of [the] program”); Zukle v. Regents of Univ. of Cal.,

,

3 1049–51 (9th Cir. 1999) (rearranging medical clerkship rotations, reducing clinical

4 hours, and otherwise decelerating schedule would lower medical school’s

5 standards); McGuinness v. Univ. of N.M. Sch. of Med.,

(10th Cir.

6 1998) (permitting student with marginal grades to advance in M.D. program as

7 an exception to policy requiring repetition of coursework was a substantial

8 rather than reasonable accommodation); Kaltenberger v. Ohio Coll. of Podiatric

9 Med.,

, 436–37 (6th Cir. 1998) (allowing student to attend abbreviated

10 remedial summer program instead of retaking failed examination would

11 diminish podiatric training standards); Wynne v. Tufts Univ. Sch. of Med.,

791, 794–95 (1st Cir. 1992) (providing biochemistry test in an alternative format

13 would lessen academic standards and devalue university’s credentials as an

14 institution).

15 Under this framework, Dean has made out a prima facie case of

16 discrimination under the ADA and the Rehabilitation Act. As noted above,

17 Defendants did not contest that Dean established the first two prongs of the

18 inquiry—whether he is a qualified individual with a disability and whether

26

1 UBMED is a covered entity. In showing that he requested a three‐month leave to

2 seek medical treatment and study for the Step 1 retake, a trier of fact could find

3 that Dean met his initial burdens of production and persuasion as to the

4 existence of an accommodation. Further, the affidavit of Dr. Hoover and Dean’s

5 deposition testimony satisfied Dean’s light burden to produce evidence with

6 respect to the facial reasonableness of the accommodation. That students are

7 ordinarily afforded six to eight weeks of study time prior to each attempt at Step

8 1 of the USMLE suggests that Dean’s leave request was a plausible modification

9 of UBMED’s policies.

10 Thus, the non‐persuasion burden falls to Defendants. In order to obtain

11 summary judgment, it was incumbent upon Defendants to submit a factual

12 record establishing that in rejecting Dean’s requested scheduling modification

13 they diligently assessed whether the alteration would allow Dean the

14 opportunity to continue in the M.D. program without imposing undue financial

15 and administrative burdens on UBMED or requiring a fundamental alteration to

16 the academic caliber of its offerings. See Powell,

. Where, as here, the

17 record is devoid of evidence indicating whether Defendants evaluated these

18 considerations in determining the reasonableness of the accommodation sought,

27

1 we decline to extend the deference we ordinarily accord to the professional,

2 academic judgments of educational institutions. See

(noting that in evaluating

3 “the substance of a genuinely academic decision, courts should accord the

4 faculty’s professional judgment great deference” (citing Regents of Univ. of Mich.

5 v. Ewing,

(1985)). To do otherwise might “allow academic

6 decisions to disguise truly discriminatory requirements.” Zukle,

.

7 We do not mean to suggest that Defendants have obscured the basis for their

8 decision to cloak discriminatory intent. Rather Defendants’ failure to adduce

9 evidence as to the basis for denying Dean’s requested modification to the exam

10 schedule precludes any conclusion on summary judgment as to the

11 unreasonableness of that accommodation.

12 We therefore set aside the district court’s grant of summary judgment to

13 Defendants on Dean’s ADA and Rehabilitation Act claims.

14 III. Procedural Due Process

15 In the context of an academic dismissal a student is afforded the

16 procedural process required by the Fourteenth Amendment where (1) the school

17 has “fully informed [the student] of the faculty’s dissatisfaction with [the

18 student’s] progress and the danger that this posed to timely graduation and

28

1 continued enrollment,” and (2) “[t]he ultimate decision to dismiss [the student]

2 was careful and deliberate.” Bd. of Curators of Univ. of Mo. v. Horowitz,

,

3 85 (1978). This standard reflects the need for “far less stringent procedural

4 requirements,”

, than those called for in disciplinary dismissal. See Goss v.

5 Lopez,

(1975) (requiring school to furnish student facing

6 suspension for misconduct: formal notice, an explanation of the evidence, and a

7 chance to present a defense–though not a formal hearing). Given the “more

8 subjective and evaluative” nature of the judgment school officials exercise in

9 deciding whether to terminate a student for academic cause, such dismissals are

10 “not readily adapted to the procedural tools of judicial or administrative

11 decisionmaking.” Horowitz, 435 U.S. at90. “A graduate or professional school is,

12 after all, the best judge of its students’ academic performance and their ability to

13 master the required curriculum.”

at 85 n.2.

14 Dean argues that UBMED failed to supply the procedural process owed to

15 him under the circumstances of his dismissal from the M.D. program.4 Further,

16 he contends that his claim should not be analyzed under the framework for

4 Defendants concede that Dean possessed a constitutionally cognizable property interest in the continuation of his medical school studies. See Branum v. Clark,

(2d Cir. 1991).

29

1 academic dismissals supplied by Horowitz and instead invites this Court to

2 fashion an alternative standard. Such distinction is warranted, according to

3 Dean, because UBMED’s decision did not reflect an academic determination but

4 instead was (1) motivated by animus and (2) undertaken automatically without

5 exercise of professional judgment. We disagree. Under Horowitz, the appropriate

6 standard to apply here, a trier of fact could find that Dean received both the

7 requisite notice of potential dismissal and a “careful and deliberate” ultimate

8 decision.

9 As an initial matter, we reject Dean’s contention that this case requires

10 application of a due process standard different from that articulated in Horowitz.

11 Dean’s allegation that Defendants’ decision was motivated by ill will or bad faith

12 is entirely conclusory with no support in the record to establish an inference of

13 animus toward Dean. See Clements v. Cty. of Nassau,

, 1005 (2d Cir.

14 1987) (“[S]ummary judgment is usually unwarranted when state of mind is at

15 issue. The state of mind exception, however, is appropriate only where solid

16 circumstantial evidence exists to prove plaintiff’s case.”(internal citation

17 omitted)). Moreover, the decision to dismiss Dean plainly resulted from the

18 exercise of professional judgment. It is true that the district court described

30

1 Dean’s ultimate dismissal as “more ministerial than evaluative,” Dean,

1316186 at *9, but this finding does not compel the conclusion that the decision

3 did not result from reasoned deliberation. Indeed, Dean does not dispute that

4 Defendants exercised academic judgment in setting a deadline to sit for the Step

5 1 exam but argues that they should not have taken a final decision given the

6 inherent possibility that he might require more medical leave. But that

7 Defendants’ final decision may have been premature goes to the substance of

8 Dean’s procedural due process claim and does not remove this case from the

9 ambit of academic dismissals.

10 Next Dean argues that even under Horowitz Defendants failed to afford

11 him the process due as (1) he was not warned of potential administrative

12 dismissal, in part, because the ASP did not contain a provision specific to his

13 situation; (2) Defendants’ June 7, 2007 decision denying additional leave violated

14 his right to a continued “give and take”; and (3) the ASP contained no effective

15 right of appeal. None of these arguments is availing.

16 By failing to address the allegedly insufficient warning of dismissal in his

17 opening brief, Dean has waived this argument. See McCarthy v. S.E.C.,

(2d Cir. 2005) (“[A]rguments not raised in an appellant’s opening brief,

31

1 but only in his reply brief, are not properly before an appellate court . . . .”); Knipe

2 v. Skinner,

(2d Cir. 1993) (“It is true that the reply brief does

3 ‘reply’ to arguments made by appellees in their answering brief. The fact that

4 appellees felt compelled to address the merits out of caution does not, however,

5 broaden the appellants’ Statement of Issues.”).

6 Even were we to reach the merits of this issue, we would likely reject

7 Dean’s argument. While the ASP may not have spelled out the precise

8 mechanism for dismissal, Dr. Cain’s letter of June 7, 2007, informed Dean that he

9 was “required to take the USMLE Step 1 exam on or before July 28, 2007,” and

10 that once Dean “fulfilled this obligation” his return to the medical school was

11 also conditioned on the outcome of additional obligations. App’x at 313. As Dean

12 was thereby made aware that he faced termination from UBMED if he did not sit

13 and pass Step 1 by this extended deadline, he received the requisite notice of the

14 school’s concern with his performance and the corresponding risk of dismissal.

15 See Horowitz,

.

16 Nor was Dean entitled to additional process after the June 7, 2007 letter

17 announcing that no additional leave would be granted. Horowitz explicitly

18 declined to apply the “give‐and‐take” standard to academic dismissals.

.

32

1 While Defendants might well have reconsidered whether to dismiss Dean after

2 he failed to sit the Step 1 exam by the deadline, he was entitled only to a decision

3 rendered with due care and deliberation, not to a particular process of continued

4 notice and consideration. Here, the record demonstrates that in considering

5 Dean’s several requests for leave, reviewing the medical documentation he

6 submitted, and in subsequently setting (and postponing) the deadline for Dean’s

7 third attempt at the Step 1 exam, Defendants made a “careful and deliberate”

8 decision that Dean be dismissed should he fail to comply with UBMED’s

9 requirement that he complete Step 1 of the USMLE by July 28, 2007.

10 Further, through the opportunity to appeal his termination and to seek

11 reinstatement Dean was provided more process than required for an academic

12 dismissal. Dean contends that he had no meaningful opportunity to appeal since

13 the ASP contains no explicit process to appeal a failure to sit for the Step 1 exam

14 and that any appeal would have been futile because it presumably would be

15 taken to Dr. Cain. But UBMED offered Dean no less than what the ASP provides

16 for any other student appeal, and the ASP makes clear that the dean of UBMED

17 renders the final decision in all appeals. In any event, Dean cannot complain that

33

1 a process to which he had no entitlement was not conducted in the manner he

2 would have preferred had he availed himself of it.

3 Accordingly, the district court did not err in granting summary judgment

4 to Defendants on this claim.

5 IV. Eleventh Amendment Immunity

6 The Eleventh Amendment bars a damages action in federal court against a

7 state and its officials when acting in their official capacity unless the state has

8 waived its sovereign immunity or Congress has abrogated it. Fulton v. Goord, 591

(2009). Because the district court found Dean failed to establish a

10 prima facie case of discrimination, it did not have occasion to address whether

11 the Eleventh Amendment prohibits Dean’s money damages claims against

12 UBMED, SUNY, and the individual defendants in their official capacities. As is

13 our usual practice, we leave it to the district court to determine in the first

14 instance whether Defendants are entitled to immunity under the Eleventh

15 Amendment as to the ADA and Rehabilitation Act claims. See Dardana Ltd. v.

16 Yuganskneftegaz,

(2d Cir. 2003).

17 However, we note a growing fracture among the district courts in this

18 Circuit in their approach to determining whether Congress validly abrogated

34

1 state sovereign immunity under Title II of the ADA. In reciting its understanding

2 of the relevant standard, the district court, citing Powell, stated that to recover

3 money damages a plaintiff must show a violation of Title II “motivated by either

4 discriminatory animus or ill will stemming from plaintiff’s disability.” Dean, 2014

, at *6. Powell in turn draws this standard from Garcia v. S.U.N.Y.

6 Health Sciences Center of Brooklyn,

(2d Cir. 2001), which held that in

7 enacting Title II Congress exceeded its authority under Section 5 of the

8 Fourteenth Amendment, “but that Title II suits could be limited to circumstances

9 in which it had not,” Bolmer v. Oliveira,

(2d Cir. 2010). Title II

10 monetary claims against a state therefore require a showing of discriminatory

11 animus or ill will to limit such suits to disparate treatment that violates the Equal

12 Protection Clause of the Fourteenth Amendment or falls within the range of

13 conduct Congress could otherwise prohibit pursuant to its prophylactic

14 authority.

; Garcia, 280 F.3d at 111–12. Subsequent Supreme Court

15 precedent concerning the constitutionality of Congress’s abrogation of Eleventh

16 Amendment immunity under Title II calls Garcia’s validity into question.

17 Of particular relevance here, United States v. Georgia,

(2006),

18 reaffirmed that “insofar as Title II creates a private cause of action for damages

35

1 against the States for conduct that actually violates the Fourteenth Amendment,

2 Title II validly abrogates state sovereign immunity,”

(emphasis

3 omitted).5 Given the possibility that the petitioner’s amended complaint in

4 Georgia might assert Title II claims not independently premised on conduct that

5 violated the Fourteenth Amendment, as well as disagreement among the justices

6 as to the scope of Congress’s prophylactic authority, the Court remanded for the

7 lower court to determine,

8 on a claim‐by‐claim basis, (1) which aspects of the State’s alleged 9 conduct violated Title II; (2) to what extent such misconduct also 10 violated the Fourteenth Amendment; and (3) insofar as such 11 misconduct violated Title II but did not violate the Fourteenth 12 Amendment, whether Congress’s purported abrogation of sovereign 13 immunity as to that class of conduct is nevertheless valid. 14 15

Thus, Georgia explicitly left open the question of whether Congress may

16 validly abrogate sovereign immunity with respect to a particular class of

17 misconduct that violates Title II but does not violate the Fourteenth Amendment.

18 Continued uncertainty as to the vitality of Garcia has led to a divergence in

19 the approaches adopted by district courts in this Circuit in their assessment of

5 In an earlier case, Tennessee v. Lane,

(2004), the Court concluded, in a case implicating a fundamental right, that Title II “constitutes a valid exercise of Congress’ § 5 authority to enforce the guarantees of the Fourteenth Amendment,” id. at 533–34.

36

1 Congress’s abrogation of sovereign immunity under Title II. 6 Some district

2 courts apply Garcia.7 Others, adopting the approach in Georgia, determine

3 whether Congress’s purported abrogation of immunity for conduct that violates

4 Title II but not the Fourteenth Amendment is nevertheless valid.8 We express no

5 position as to the question of whether Congress has validly abrogated sovereign

6 immunity in the context of discrimination in access to public education on the

6 In Bolmer, we noted that this Circuit had not yet decided whether Garcia survived Lane and Georgia, but we declined to address the question as we found Garcia was limited to Equal Protection Clause claims and thus did not apply to the substantive due process claim at issue.

. 7 See, e.g., Frank v. Sachem Sch. Dist., No. 14‐cv‐67(ADS)(ARL),

(E.D.N.Y. Feb. 5, 2015) (applying Garcia without discussion of Georgia); Morales v. New York,

(S.D.N.Y. 2014) (same); Brown v. DeFrank, No. 06 Civ. 2235(AJP),

, at *26 (S.D.N.Y. Nov. 15, 2006) (acknowledging Georgia but applying Garcia); Cabassa v. Smith, No. 9:08‐ CV‐0480 (LEK/DEP),

, at *14 n.17 (N.D.N.Y. Apr. 30, 2009) (same).

8 See, e.g., Goonewardena v. New York,

, 323–24 (S.D.N.Y.

2007) (applying Georgia and concluding that Congress validly abrogated state sovereign immunity under Title II with respect to discrimination against the disabled in access to education); Andino v. Fischer,

, 377–78 (S.D.N.Y. 2010) (following Goonewardena but finding no violation of Title II at the first of the Georgia steps); Ali v. Hogan, No. 9:12‐CV‐0104,

, at *11 (N.D.N.Y. Sep. 30, 2013) (adopting Goonewardena approach).

37

1 basis of disability.9 However, if the district court reaches this issue on remand, it

2 should, at a minimum, evaluate whether the approach erected in Georgia applies.

3 See 546 U.S. at 158–59.

4 CONCLUSION

5 For the foregoing reasons, the judgment of the district court is affirmed in

6 part, vacated in part, and remanded for further proceedings consistent with this

7 opinion.

9 Several of our sister circuits hold that abrogation of state sovereign immunity under Title II in the context of discrimination in access to public higher education for individuals with disabilities falls within Congress’s enforcement power under the Fourteenth Amendment. See Bowers v. Nat’l Collegiate Athletic Ass’n,

, 555–56 (3d Cir. 2007); Toledo v. Sanchez,

(1st Cir. 2006); Constantine v. Rectors & Visitors of George Mason Univ.,

(4th Cir. 2005); Ass’n for Disabled Americans v. Fla. Intʹl Univ.,

, 956‐59 (11th Cir. 2005). But see Pace v. Bogalusa City Sch. Bd.,

(5th Cir. 2005) (declining to address whether Lane extends to disability discrimination in access to public education as no recognized fundamental right was at stake). 38